Themba Hasaan Kelley ( Temba Spirit), January Ninth 2020 in Judge Aubreights chambers
Below is the historical motion citing the state on its endorsement of Grand Jury Perjury...
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
STATE OF OREGON,
THEMBA HASAAN KELLEY,
Case No.: 19CR53657
DEFENDANT’S MOTION TO COMPEL DISCOVERY
DEFENDANT by and through his attorney Barry W. Engle hereby moves this court for an order to compel the following evidence:
E-mail between DDA and police regarding the 8/14/2019 search warrant.
Notes of DDA regarding conversation with police regarding the search warrant.
Notes of DDA regarding conversation with police regarding statements of Wendy Parris.
Notes of DDA regarding testimony or statement of Wendy Parris.
Notes of DDA regarding testimony of Wendy Parris.
Notes of DDA “Victim’s Advocate,” (thought to be Emily Augustin) regarding conversations with Wendy Parris.
Notes of all police regarding statement or discussions with Wendy Parris about the allegation.
Video from Fred Meyer surveillance, August 13, 2019.
This is a motion pursuant to ORS 135.805 et seq, and the Oregon State and Federal Constitution, as applied in cases like Brady v. Maryland, 373 US 83 (1963).
STATE’S EXPECTED EVIDENCE
Wendy Parris made the following allegations against Themba Kelley, briefly stated:
She alleges that they spent the day together on August 13, 2019. She alleges that later that night, they checked into a hotel room together. She alleges that he became physically aggressive in the hotel room. She alleges that he produced a gun and held her hostage with it. She alleges that he violently restrained her and “shattered,” her arm. She alleges that he forcefully orally sodomized her and vaginally raped her. She then alleges that they went to a 7-Eleven store together by car and then returned to the hotel. She alleges that she contacted friends while they travelled to and from 7-Eleven and that she told them “tell (the police) that he has a gun.” Kelley was arrested in what the police refer to as a “high risk arrest.” That is, at the time of the arrest, they believed that Kelley had a gun.
EVIDENCE DISPROVING PARRIS’S ALLEGATIONS
The allegation of a firearm is demonstrably false.
The police searched the hotel room, the car, and the defendant’s person and never found a firearm or anything associated with a firearm. Obviously, this was an essential focus of their search and so if there had been any such evidence it would have been located. The statements of Parris regarding the firearm are summarized below.
GPD Officer Joel Walden appears to be the first police officer to talk to Parris at the scene. He interviewed her around 3:55 AM on August 14, 2019 and she elaborated her allegations against Kelley. Walden reports that this interview occurred before Kelley was taken into custody. Parris specifically gave Walden a statement about Kelley and Parris at the 7-Eleven store. She said:
Wendy said that Themba drove to the bus stop near the 7-11 store, near SE 162nd Ave. / SE Stark St. Wendy said Themba began conversing with an unknown female (later identified as Olivia Ordones), and convinced her to get into the jeep with them. Wendy said Themba had invited the unknown female back to his motel to “party.” Themba drove Wendy and the unknown female back to Motel 6.
Notably, Parris didn’t say anything about a gun being displayed at the 7-Eleven. It is important to understand the context of these statements. The police were trying to arrest Kelley in the hotel room. Walden interviewed Parris in preparation of a “high risk” arrest. That is, they believed that Kelley had a gun because Parris had told him that he did. Clearly, the reason the police saw it as a priority to ask about a gun is because they want to know if the person that they are currently arresting has one.
GPD Officer Tyson Conroy reports that he contacted Kelley on the phone in the hotel room just before the arrest. Because of the “high risk” arrest procedure the arrest took some time. During that time, a group of armed police officers held guns on the door, while Conroy called Kelley and demanded that he walk out the door with his hands up. Conroy states the following regarding his exchange with Kelley:
As I spoke with Kelley, he asked us why we didn’t just knock on the hotel room door. I told him Parris told us that he was armed with a gun. He said he did not have a gun and had not had one for 30 years.
That is, Conroy explicitly told Kelley that Parris had told them that currently, at the time of the arrest, that Kelley was armed with a firearm and that is why they were conducting a “high risk” arrest. Because Kelley believed that he would be shot and citing events where unarmed black men are shot by police, he was afraid to come out right away. The arrest occurred at around 5:56 in the morning. It is obvious from the manner of the arrest and the number of drawn firearms used by police that they continued to believe that Kelley was armed as of 5:56 in the morning.
GPD Detective Anthony Cobb arrived at the scene at 5:45 am. Putting this in context with Conroy’s report, the police were pointing their guns at the hotel room and waiting for Kelley to come out. He again spoke with Parris about the gun:
I obtained a very brief statement from her where she confirmed that she had been held hostage at gun point and had been sexually assaulted by the male suspect inside the motel room. Ms. Parris described the gun used during the incident as being a small black colored semi-automatic gun that was smaller than the handgun carried by our patrol officers. She did not have further on the gun.
Parris was on the Motel 6 property at the time of this statement. That is, Parris and Cobb were watching the events of Kelley’s arrest unfold as they were speaking. This is the first topic that Cobb discussed with Parris at the scene. It should be clear that this line of questioning was directly regarding Kelley’s pending arrest and the police concern about the alleged firearm. She did not say anything about Kelley disposing of the gun at 7-Eleven or anything that contradicted the police belief that Kelley had a gun.
At 2:20 pm on the same day, Cobb swore out an affidavit for a search warrant to search the hotel room, car and other locations. Cobb’s affidavit was to present probable cause that “(…)items related to a firearm(s) including but not limited to ammunition, shell casings, bullets, primers, powder, magazines, cleaning equipment, holsters, gun boxes and cases, trigger locks, gun safes, gun parts and tools, shooting targets, items which show firearms possession” would be found in the hotel room or car. It will be assumed that Cobb did not withhold information in his possession at that time that Kelley disposed of or otherwise dispossessed the alleged firearm. That is, that 1. He believed that it was more likely than not that a firearm would be found and that 2. He didn’t have information that would lead him to believe that a firearm would not be found. He swore in the affidavit:
The suspect then told her to get into his Jeep that was parked in the parking lot to go to the 7-11 to pick up a girl that Ms. Parris did not know. Ms. Parris reported that when she got into the suspect’s vehicle, she had her cell phone on her and was covertly texting friends for help. Ms. Parris stated the suspect picked up a second female and returned back to the hotel room.
Cobb further deposed:
I asked (the second female) about any weapons inside the residence and she told me she did not see any weapons that night at all.
Before submitting this affidavit, “DDA Nicole Herman” (sic) “reviewed the facts as presented, the affidavit and the warrant (…) by email and recommends that a warrant be issued.” This review occurred at 1:00 PM on August 14, 2019. The warrant was signed by a judge at 2:25 PM that same day.
During the time that the warrant was being obtained, Parris was in the hospital attended by “Officer Hulbert,” Detective Nate Hibbert, and other unnamed police officers and an employee of the Multnomah County District Attorney’s Office, presumed to be Emily Augustin. Parris subsequently gave a recorded statement to police following her release from the hospital. This statement occurred at 1:33 pm. Her statement changes significantly in that she alleges for the first time that she saw a gun at the 7-Eleven:
Police: How did he come in contact with (the second female)? Was she just at 7-Eleven or why’d you---
Parris: She ---
Q: --pull in there?
A: Because he saw her at a bus stop and said she was cute.
Q: Okay. So then what happened?
A: So then we pulled into 7-Eleven. And there’s a – some guy. I don’t know who he is. I don’t – I’m – I don’t know. I wasn’t really paying attention ‘cause I was on my phone. Like, I was focused while he—
A: -- was not paying attention to me. And so then, ah – ah, I saw him pull the gun out of the back of his pants, you know, like in my peripheral vision. I’m thinking, what the fuck? You know what I mean?
A: That caught my attention. And so then he was talking about the gun and drugs and – (…) He never got out of the car. Ah, the gun, ah, drugs, the bitch, the bike, ah 200 bucks. (…)
During the entire time from 3:55 am to 1:33 pm, Parris was in the presence of either police, police detectives, or employees/volunteers with the District Attorney’s office. Some of those parties must have made notes of their conversations with her, either hand written or otherwise. In the present case, the need for the notes is especially strong because of the modification of her testimony from 3:55 am until 1:33 pm. That is, her story seems to have changed and developed while she was in the presence of members of the government. If any of them have any notes or memoranda of her statements, these must be discovered.
Grand jury occurred about 5 days later. The story about the gun had progressed and was modified again. She stated:
Parris: And so, we were stopped at 7-Eleven ‘cause he saw this girl. And he was talking to her and convinced her to come with us to party and have a good time. And whenever he would turn his head away from me, I would try to get her attention.
And I’m shaking my head, no, no, no, no. And she wouldn’t listen to me. And so, she had a bike or something and then that’s when I saw the gun again. He was talking to the guy about the gun and the bike and $200 and I – I – I don’t know. (…) I saw it out of my peripheral ‘cause when he pulled the gun, I was like, what the fuck are you doing? Like, what’s going on now? And – but then I didn’t see the gun again. And then I guess the guy took the bike. I – I – I don’t know. And then the girl got in the car.
The above constitutes evidence that Parris substantially changed her story from her first contact until grand jury. What is unclear is why she changed her story and exactly when. The above referenced notes and memoranda of her statements are necessary evidence to demonstrate why and when she changed her story. Those notes and memoranda are in the state’s possession and so must be discovered to the defense.
DDA is aware of falseness of Parris’s testimony and has notes regarding it.
It is apparent that at the time of the grand jury testimony, the DDA was in possession of the entire police report including the interview of Parris, the interview with Ordenes, and the search warrant. The DDA must be aware of the difficulty that this presents for the state’s case and appears to have notes on the topic as demonstrated by the following exchange at the grand jury that occurs after the above testimony.
DDA: Okay. Okay. Let me just check my notes if I can. And you said after you saw the gun at the 7-Eleven, you never saw it again; is that right?
Q: Okay. So you didn’t see it in the car as you were driving back or anything like that?
A: Hmm-mm. I don’t know – I don’t know if he, like, sold it to that guy. I don’t – I don’t know. Yeah. I don’t know what happened to that (indiscernible).
Q: Okay. And it sounds like you were kind of focusing on your phone and not –
Q: -- really listening to –
Q: -- everything he was saying; is that right?
Clearly the DDA has considered in advance that the absence of a gun at the time of the search warrant is a problem, and explicitly says that she has notes on that topic. This line of questioning repeats what is said earlier in Parris’s testimony but then adds argumentative questions to present to the grand jury the theory that Parris could have missed this “sale” of the gun because Parris was “focusing on (her) phone.”
From this information, it is a reasonable and logical conclusion that notes in the possession of the district attorney, or their employees, will be useful to the defense to impeach Parris and provide her motivation to change her story regarding the gun. Therefore, the court should compel the state to present the notes of any statements made by or to Parris regarding the gun in any way.
The allegation of a broken arm is demonstrably false.
When contacted by Walden at 3:55 AM, Parris was “holding her left arm close to her body, tending to a potential injury,” according to his report. At the 1: 33 PM interview, Parris alleges that Kelley broke her arm in the hotel room:
Detective: I overheard when we were at the hospital that ---
Parris: That I had –
Q: -- you have a fracture of your forearm.
Q: Is that what they said?
A: Yeah, that I might –
A: -- need surgery. The nurse was saying that I might need surgery. I gotta go see a, ah –
A: -- (indiscernible)
Q: So when did that happen?
A: Ah –
Q: When did you –
A: -- with – within the –
Q: -- hear the pop?
A: --first—within the first few minutes of our struggle. (…)
Q: Okay. But you remember distinctly hearing a pop?
A: Yeah, ‘cause it hurt and it burned.
A: And right here and it – that pop. And that – pausing for a second. I think he heard it, too. (…)
Q: And that’s when he flipped you around. And when you were being flipped is when you heard the pop?
A: Ah, I think.
A: I—I—ah, I don’t know. I just remember that that was when he got his arm around me because I was in pain.
The police, however, obtained video from the Motel 6, where the above is alleged to have occurred. Parris is seen leaving the hotel room at 3:39 AM. She is clearly seen holding her left arm normally and not exhibiting any pain. She uses the arm to close the hotel room door behind her. She uses the arm to help support her enormous cat that she is carrying from the hotel room. She appears to have her phone in her left hand. In short, she exhibits no pain whatsoever in this video.
Medical testimony is expected in this trial. An X-ray was taken at the hospital that does show a break in the arm. However, the break is heavily calcified, indicating that is it likely an old break. She admits to the hospital staff that a traffic accident within the past year broke the arm. Medical testimony is expected that given the normal use of the arm on the 3:39 AM video, and the heavy calcification, that the most likely conclusion from the data available is that there was no acute, that is recent, arm break.
Parris testified at the grand jury:
DDA: And so I’m jumping ahead, I know, but what – what is wrong with your arm?
Parris: It’s broke. It – I mean, it’s shattered –
A: -- from, like, wrist to here.
Q: Okay. To –
A: Yeah. (…)
Q: And as far as you know, is – did that broken arm happen during this altercation where you’re trying to get away?
Q: Okay. And it wasn’t broken or injured before you got into that motel room?
The story has become demonstrably false. Her arm was not “shattered” and the medical records confirm that. The arm was not broken during an altercation in the hotel room as confirmed in the video. It was broken or injured before she got into that motel room as demonstrated by the medical reports, Parris’s own statements in the reports, and the calcified break.
DDA is aware of the falseness of Parris’s testimony.
At the time of the grand jury, the DDA was in possession of the complete medical report where Parris admits that she broke the arm within the last year in a car accident. The DDA is in possession of the Motel 6 video where Parris uses the arm normally and pain free as she is leaving the hotel. The DDA is in possession of the report of the 1:33 AM interview where Parris describes the pain as being immediately after the “pop” indicating that Parris is alleging that the break occurred in the hotel.
The DDA’s next question at the grand jury hearing seems to demonstrate that she knows that this is a problem for her case:
Q: Okay. All right. And so your arm – can you feel it at this point or is it – do you not feel that until later.
A: No, I wasn’t really – yeah. I mean, now that – not yet.
A: I mean yeah.
That question, “do you not feel that until later,” makes no sense if the DDA does not know that Parris is seen walking from the hotel without pain. No one would ask someone who just said their arm was “shattered from the wrist to here,” if it didn’t hurt until later unless they had a reason to believe that the person didn’t exhibit pain.
The defense will be filing a motion to dismiss the indictment pursuant to the principles of Napue v. Illinois, 360 US 264 (1959) alleging that the DDA knew or should have known based upon the information available to her at the time of grand jury that a witness was lying and did nothing to correct it. The defense has demonstrated here that the witness’s testimony was false in regard to the severity of the injury and the existence of a prior injury. Given the clear contradiction to Parris’s testimony found in discovery: that the break was not “shattered,” that the witness was viewed on video without pain, that the break was heavily calcified and that the medical reports confirm the existence of a prior injury, it is clear that the DDA should have known that the witness was lying. Notes that were taken by police, the DDA, any employee of the DDA, or anyone else regarding Parris’s statements regarding her arm are relevant to the Napue motion in order to prove or disprove actual knowledge of Parris’s lie. Such notes are also important impeachment evidence to demonstrate when and why Parris developed these lies.
Defendant hereby moves to compel the video that has been lost due to the bad faith actions of the police.
In an informal discovery demand, Defendant has demanded production of the video from Fred Meyer. The history of this request is as follows: On the day of the alleged incident, August 14, 2019, and in the days that followed, defense counsel met personally with and then was in communication with the lead police investigator Det. Tony Cobb, who was frankly very responsive. In those first interactions at the scene, Cobb and defense counsel discussed the importance of certain pieces of video and the urgency in obtaining them. The importance of the Fred Meyer video was discussed at that time.
From reports it is apparent that the task of obtaining the video was assigned to Gresham Police Detective Aaron Turnage who reported:
I drove to (Fred Meyer) and spoke to an unidentified member of management. I explained I wanted to determine if any video was available for the evening of August 13, 20-19 and I provided the information from the receipt that was provided by the victim. I was told that a member of loss prevention would contact me if video was available. I was told loss prevention was not currently working and the members of management did not have access to the CCTV system.
I did not receive a call back from management or loss prevention. I called the store on several different occasions and I was never able to contact anyone who could provide information; the business was not overly helpful or accommodating to my requests.
No video was recovered from this location.
Turnage’s report regarding his efforts was not discovered until the end of November. Up until then, the defense believed, based on Cobb’s testimony at grand jury, that the discovery of the recording was imminent. Following receipt of Turnage’s report, defense investigator Frederick Gove easily contacted loss prevention at Fred Meyer Hawthorne on December 17, 2019. He learned that Fred Meyer has a state-of-the-art system, that the video would have been available probably through October and that Fred Meyer policy is eager to cooperate with police. Notably, if Turnage would have just gone to the store, they would have provided him footage.
The video was important to this case because Parris testified at grand jury that she and Kelley were in no way romantically involved on August 13, 2019. This video would have demonstrated the falseness of this statement. This discovery demand is made in anticipation of a motion to dismiss pursuant to Calfornia v. Trombetta, 467 US 479 (1984) and its progeny alleging that the spoliation of this evidence was in bad faith because the police were aware from the date of incident that the evidence was important, the police did not take even reasonable steps to secure it, that the government led the defense to believe that it was preserved, and that the government did not alert the defense when it became clear they were unable to secure it.
The court should grant defendant’s motion to compel the production of the items listed on page one above.
Dated this 27 December 2019.
BARRY W. ENGLE PC
s/ Barry W. Engle
Barry W. Engle
OSB No.: 960598
Attorney for Defendant
CERTIFICATE OF SERVICE
The preceding document, Defendant’s Motion to Compel Discovery was served on Friday, December 27, 2019, via electronic mail, to the parties, or their attorneys if represented, below named:
DDA Nicole Hermann
Dated this 27 December 2019.
BARRY W. ENGLE PC
s/ Barry W. Engle
Barry W. Engle
OSB No.: 960598
Attorney for Defendant
IN THE CIRCUIT COURT OF THE STATE OF OREGON 2 FOR THE COUNTY OF MULTNOMAH 3 4 STATE OF OREGON, ) ) 5 Plaintiff, ) Multnomah County ) Circuit Court 6 v. ) No. 19CR53657 ) 7 THEMBA HASAAN KELLEY, ) ) 8 Defendant. ) 9 10 TRANSCRIPT OF PROCEEDINGS 11 BE IT REMEMBERED that the above-entitled 12 Court and cause came on regularly for hearing before 13 the Honorable Cheryl Albrecht, on Thursday, the 14 9th day of January, 2020, at the Multnomah County 15 Courthouse, Portland, Oregon. 16 17 APPEARANCES 18 Nicole Hermann, Deputy District Attorney, Appearing on behalf of the State; 19 Barry Engle, Attorney at Law, 20 Appearing on behalf of Defendant Kelley. 21 22 KATIE BRADFORD, CSR 90-0148 23 Court Reporter 24 Proceedings recorded by digital audio recording; 25 transcript provided by Certified Shorthand Reporter. Index 2 1 GENERAL INDEX 2 Page No. 3 January 9, 2019 Proceedings 3 4 Defendant's Motion to Compel Discovery 3 5 Defendant Kelley's Statement to the Court 4 6 Defendant's Argument by Mr. Engle 6 7 Further Defendant's Argument 26 8 Colloquy Between the Court and Mr. Engle 27 9 State's Argument by Ms. Hermann 31 10 Defendant's Response by Mr. Engle 37 11 State's Response by Ms. Hermann 44 12 Court's Ruling 48 13 Reporter's Certificate 50 14 * * * 15 16 WITNESS INDEX 17 FOR THE DEFENDANT: Direct Cross Redirect Recross 18 Frederick Gove 21 19 * * * 20 21 22 23 24 25 3 1 (Volume 2, Thursday, January 9, 2020, 10:21 a.m.) 2 P R O C E E D I N G S 3 (Whereupon, the following proceedings 4 were held in open court:) 5 MS. HERMANN: We are here in State of 6 Oregon versus Themba Kelley, Case No. 19CR53657. 7 Nicole Hermann for the State, H-e-r-m-a-n-n, Bar No. 8 126353. Mr. Kelley is present in custody represented 9 by Mr. Engle. This is the time and place set for 10 defense's motion to compel discovery. 11 THE COURT: Thank you. 12 MR. ENGLE: Good morning, Your Honor. 13 My name is Barry Engle, E-n-g-l-e, 960598. We're 14 ready to proceed. 15 THE COURT: Okay. And this is your 16 motion, Mr. Engle. I have received your motion and 17 the State's response and I understand the parties 18 have come to some agreement on some of these issues. 19 MR. ENGLE: Right, Judge. And as I 20 mentioned back in chambers, I --
Mr. Kelley had asked 21 for the opportunity to make a one minute or less 22 statement regarding some issues that -- that we have 23 with the court system, in general, not directly 24 related to the issue, but I -- I hope Your Honor will 25 indulge a -- a short statement in that regard. 4 1 THE COURT: So at the outset of the 2 hearing, I will permit Mr. Kelley to make a statement 3 and I'll consider -- I'll consider it as it relates 4 to these issues. 5 So, Mr. Kelley, would you like to make a 6 statement? 7 DEFENDANT KELLEY: Thank you. Yes. 8 Thank you, Your Honor. First of all, I just want to 9 acknowledge Aneesah Furqan, the vice president of the 10 Oregon Assembly for Black Affairs, who's in the 11 audience to support me. 12 They and also the co-founder of the Love 13 Wins movement, Margine Bacas (phonetic). And it's -- 14 but this -- 15 THE COURT: I'm sorry, the co-founder of 16 what? 17 DEFENDANT KELLEY: Co-founder of the 18 Love Wins movement. 19 THE COURT: Okay. 20 DEFENDANT KELLEY: Margine Bafas and 21 Aneesah Furqan is the vice president of the Oregon 22 Assembly for Black Affairs. 23 THE COURT: Welcome. 24 DEFENDANT KELLEY: And this is 25 definitely related to this issue. And I consider 5 1 actually every time I'm in the courtroom that this 2 issue I'm addressing is relevant. 3 THE COURT: Okay. 4 DEFENDANT KELLEY: Okay. On behalf of 5 my various ancestral lineages, be that European, 6 Asiatic or African, do I speak. To my great 7 appreciation, the W. Haywood Burns Institute 2019 8 racial and ethnic disparities report was recently 9 released. 10 Finally, at last, through this very 11 informative document have my experiences of 12 prosecutorial racism in Multnomah County been at 13 least statistically validated. 14 The statistics are horrific and it can 15 no longer be said that black people in Multnomah 16 County experiencing prosecutorial racism are pulling 17 the race card. 18 Furthermore, what the RED report 19 confirms profoundly is that people of color's equal 20 protection of the law 14th Amendment constitutional 21 guarantees are being violated in droves. My current 22 situation is no different. 23 Ray Charles, Hellen Keller, blind, dead 24 and six feet underneath the Earth could easily see 25 that I am being maliciously and selectively 6 1 prosecuted by some, not all, misinformed persons in 2 the District Attorney's Office. Nonetheless, though 3 my eyes remain on the prize, victory, love and 4 freedom. 5 Last to the State, all black men do not 6 carry guns. Like I said on the day of my arrest, I 7 have not carried one in over 30 years. Furthermore, 8 God will not allow the State to squeeze me into its 9 racially biased box of witness false statements, 10 prior inconsistent statements and its plethora of 11 grand jury perjury. Thank you. 12 THE COURT: Okay. Thank you. 13 MR. ENGLE: And -- Judge, and just to, I 14 think, tie that into what we're talking about in 15 regard to the motion to compel, in addition to the 16 other things that we've requested, anything that 17 indicates -- that could be construed as race or bias 18 by any witness or any person involved in the 19 prosecution, we're asking for that in the context of 20 the things we've already asked for. 21 So in regard to the motion, itself, 22 defendant's motion to compel -- and we -- we received 23 your response. There's been some e-mail 24 correspondence between the parties and so what I want 25 to do is, is I want to make a record of the things 7 1 that are not in dispute and then talk about what I 2 think is -- is just about the one thing that still is 3 in dispute. 4 THE COURT: Okay. 5 MR. ENGLE: So in regard to the eight 6 points in defense motion to compel, I've received the 7 following response, which, as I say, is -- is about 8 80, 90 percent, I think, solved -- settles the issues 9 in -- in -- and so -- but I want to make sure we've 10 got a record on this. 11 So in regard to an e-mail between -- my 12 request for e-mails between the DDA and the police 13 regarding the 8-14-19 search warrant, the response is 14 -- is that, quote, "I have gathered all of the 15 e-mails I exchanged with Detective Cobb, who wrote 16 the warrant, surrounding the 8-14 search warrant and 17 she's sending them to me through discovery to make 18 sure they are Bates stamped, but for the purpose," 19 blah-blah-blah. 20 So -- and I did receive a set of 21 e-mails, which I understand to be the entirety of the 22 e-mails in the possession of the district attorney 23 regarding the -- regarding the search warrant. 24 The -- and then in regard to -- I guess 25 I should say to the extent that I'm saying that's all 8 1 of them, that I'm not being contradicted on that, 2 that I -- that we're saying that is all of them. 3 You know, again, I -- I -- in good 4 faith, I believe I am receiving all of them. And I 5 just want to make sure to be clear that as I say 6 that, that I'm saying that -- that that's been 7 represented to me that it's all of them. 8 Two notes of the DDA regarding 9 conversation with police regarding the search 10 warrant. It says, "Other than the e-mails attached 11 and referenced above, I did -- I did not take any 12 notes. There is no notes regarding my conversation 13 with police about the search warrant in this case." 14 And, again, I'm taking that as a 15 representation that there are none. Notes of DDA -- 16 No. 3, notes of DDA regarding conversation with 17 police regarding statements of Wendy Parris. 18 And the response, "I did not take any 19 notes of -- of any -- any conversations with police 20 about Wendy Parris or about conversations they or 21 other officers had with Wendy Parris." And, again, 22 I'm taking that as definitively saying -- 23 DEFENDANT KELLEY: Do you have another 24 copy of that? 25 MR. ENGLE: No, but you can borrow -- 9 1 DEFENDANT KELLEY: Okay. 2 MR. ENGLE: -- mine. 3 The -- that that's -- that there are -- 4 there are -- affirmatively stating that there are no 5 -- no such notes. 6 No. 4 is the one where the dispute 7 arises. Notes of DDA regarding testimony or 8 statement of Wendy Parris. And it says, "I did not 9 take any notes during Ms. Parris' grand jury 10 testimony or any other time that I have spoken to 11 Ms. Parris." 12 So my concern about that is, is that I'm 13 asking about notes regarding Ms. Parris' testimony 14 and not just notes of conversations with Ms. Parris. 15 And I want to highlight from my -- my motion to 16 compel discovery why I believe that I'm entitled to 17 that. 18 So, basically, the response that I 19 received back orally to that clarification about what 20 I was asking was -- is that there was very little by 21 way of notes that were being relied on during the 22 grand jury testimony and that it consisted primarily 23 of police reports with highlights on them. 24 So my concern is, is you can see that in 25 the motion to compel discovery page, I think, 11 -- 10 1 DEFENDANT KELLEY: It's -- I don't have 2 page numbers on mine, so -- 3 MR. ENGLE: Yeah, that's fine. 4 THE COURT: Okay. 5 DEFENDANT KELLEY: It's -- 6 MR. ENGLE: No, I'm not at 11. 7 (Whispered discussion, off the record, 8 10:28 a.m.) 9 MR. ENGLE: It's okay. I'm sorry, 10 Page 7. 11 THE COURT: Okay. 12 MR. ENGLE: My concern is, is this -- it 13 says, "DDA: Okay. Okay. Let me check my notes if I 14 can. And you said you saw the gun at the 7-Eleven. 15 You never saw it again; is that right? 16 "Answer: Right." And -- and -- and the 17 statement goes on. 18 So my issue is, is that I think in -- 19 we've had a discussion about work product and we've 20 had a discussion about what's discoverable and what's 21 not. So I want to make clear why I'm asking for 22 these notes in particular in regard to the testimony 23 and not just statements specifically in regard to 24 what Ms. Parris said to the DDA. 25 Our concern is -- and -- and I -- I put 11 1 one paragraph in here about the pending motion under 2 Napue v. Illinois. But it goes something like this: 3 That in the era of recorded grand jury statements, 4 that we can now see everything that a witness 5 testifies to in a grand jury. 6 This case, amongst others, presents a 7 situation where -- and I think I've demonstrated at 8 least two, but there are much more than that. But 9 two circumstances where the testimony of the witness 10 appears to be false. 11 And it appears to be false in a way that 12 was very easily contradicted by evidence that, at the 13 time of grand jury, would have been in the possession 14 of the State. So my concern in the motion is -- is 15 not just that a witness testified falsely, but that 16 it wasn't openly corrected by the prosecutor at the 17 grand jury proceeding. 18 And, again, I think for -- in Oregon 19 litigations, this is kind of a newer idea because 20 we've only had the grand jury transcripts for a 21 fairly short period of time. 22 But, you know, I think it strikes me 23 that it could be a -- an idea that if, you know, a 24 witness testifies falsely, that that might be the 25 grand jury's determination to decide whether that's 12 1 false or not or that as long as other evidence that 2 might contradict that was presented, that that would 3 be sufficient. 4 I think what these Napue cases say and 5 the ones that follow from it in the motions pending 6 -- or not pending yet, but being prepared by us and 7 -- and in the investigation stage -- is that the 8 prosecutor actually has an affirmative duty to 9 correct that. 10 In other words, they can't just leave it 11 there. They can't just let it sit there and not out 12 and out say, "Yeah, that's not actually true," 13 because there's -- there's evidence that contradicts 14 it. 15 I think the most obvious instance of 16 that in this case is in regard to the -- the prior 17 injury where, you know, the question is -- is, you 18 know, very flatly asked of the witness regarding her 19 previous -- regarding this -- this alleged arm break. 20 And, again, like I say, I'm not taking 21 away from anything I've included in the written 22 motion, but -- but the one that -- that just strikes 23 me as being hanging there in a way that really needed 24 to be corrected and wasn't was, "Okay. And it wasn't 25 broken or injured before you got into that motel 13 1 room? 2 "Answer: No." Which the medical 3 reports that I got from the prosecutor's office 4 clearly indicate that it was broken or injured before 5 she got into the motel room and that it was calcified 6 over and it was from a car accident and it's -- it 7 was all right there in a situation where it seems 8 implausible that that wasn't well known to everybody 9 involved in the case. 10 So the reason that I believe that the 11 notes, whatever it is that the prosecutor was using 12 in order to examine the witness during the grand jury 13 proceeding would be discoverable, even over a work 14 product exemption is -- is because we've got, you 15 know, constitutional rights to litigate this Napue 16 motion and to -- and to question and challenge the 17 validity of the grand jury proceeding at all. 18 So, in any event, it strikes me that 19 it's in -- it's insufficient to simply say, "I didn't 20 take any notes from my conversations with her," 21 because, in a sense, I think it's important for that 22 motion to show, you know, what I kind of already am 23 most of the way there on, which is that the -- the 24 government, you know, had to have known that what she 25 was saying was contradicted by her own -- her own 14 1 statements to the -- to the medical staff. 2 But, in any event, those notes that are 3 being declared as work product are going to tell us 4 one way or the other, it would seem to me, whether or 5 not that was, in fact, known or not known. 6 Now, what's been -- what's been said to 7 me today was, is it's -- it's -- it's just 8 highlighted police reports or I don't know if it's 9 handwritten notes in the margins of the police 10 reports or whatever. 11 But if the Court is not willing to just 12 out and out give me -- or have the -- the State 13 provide to me whatever was being relied upon during 14 the grand jury by the -- by the DDA in this case, 15 then I would ask as an alternative remedy that the 16 Court order the -- the DDA to present those to the 17 Court for in-camera inspection and then -- and then 18 Your Honor determine whether they have any relevance 19 to the motion that we're making under Napue v. 20 Illinois. 21 And specifically in regard to what was 22 known and not known by the government at the time 23 that Ms. Parris made these demonstratively false 24 statements. 25 As I say, that was just one example, but 15 1 it was one that just was so -- it hung there so, you 2 know, obviously. "And it wasn't broken or injured 3 before you got into the motel room? 4 "Answer: No." When it -- it -- you 5 know, it seems everybody knew that that wasn't the 6 case, especially Ms. Parris. So that's -- that's 7 my -- 8 What -- what do you want to tell me? 9 (Whispered discussion, off the record, 10 10:34 a.m.) 11 MR. ENGLE: So -- and -- and just -- 12 just to highlight, I think, what I already said and 13 is already in -- in the written materials, is -- is 14 that -- is that the -- the section of my motion I 15 referred to in the piece of the transcript of the 16 grand jury indicates that there were something that 17 was called notes being relied upon, so certainly 18 there must be something that meets the qualification 19 of notes. 20 And that being the case, you know, at 21 the very least, I think I would be entitled to a -- 22 an in-camera inspection of that. Notes regarding 23 conversation with police regarding -- did not take 24 any notes. 25 No. 4, notes of DDA regarding testimony 16 1 of Wendy Parris. "I did not take any notes during 2 Ms. Parris' grand jury testimony or at any other time 3 that I've spoken to Ms. Parris." 4 And I think, again, that that doesn't 5 answer the question directly, which is what was known 6 and not known by the government at the time of her 7 testimony. Notes of DDA regarding testimony of 8 Wendy Parris. "I did not take any notes during 9 Ms. Parris' grand jury testimony." 10 Again, that's -- that's exactly what -- 11 not what I'm asking for. I'm asking for notes 12 regarding the testimony. And, again, I -- I hear the 13 work product objection, but I guess what I'm saying 14 is, is that I believe the -- the constitutional right 15 of -- of Mr. Kelley to defend himself and to pursue 16 motions made in good faith would over -- overcome, I 17 think, the work product objection. 18 Notes of DDA victim's advocate. The 19 response is actually in the form of a question asking 20 me to clarify. And -- and -- and I did tell 21 Ms. Hermann that I -- I didn't -- I didn't and do not 22 profess to understand exactly how the victim's 23 advocate system works in the DA's Office since, you 24 know, that's not my -- not my areas to know how that 25 works. 17 1 But, regardless, it appears that what 2 I'm being told back is -- is that there's more than 3 one person who had conversations with Ms. Parris 4 immediately -- immediately after her report to the 5 police and before her formal statement to the police 6 and then ongoing throughout until -- until current 7 day. 8 I -- I -- I am and continue to ask for 9 all notes that any volunteer or employee of the 10 District Attorney's Office have -- have made in 11 regard to statements or conversations they have had 12 with Ms. Parris. 13 DEFENDANT KELLEY: And recordings. 14 MR. ENGLE: Include -- I would -- 15 including recordings, if made, photographs, et 16 cetera. But whatever record exists by those people, 17 whether they just be, you know, things that have been 18 actual physical reports made or recordings or just 19 handwritten, scrawled notes, asking for those as. 20 So that clarifies the question that I'm 21 being asked there. And, again, these are just 22 statements of a -- of a witness in regard to the -- 23 in regard to the -- the matter. So, I mean, it seems 24 like it wouldn't be particularly contentious. 25 Notes of all police recordings -- or 18 1 police regarding statements or discussions with 2 Wendy Parris. "Based upon motion narrative," 3 blah-blah, "you are looking for any and all notes of 4 any police officers that have had a conversation with 5 or took statements from Ms. Parris?" And that is 6 accurate. That is what I'm looking for. 7 I do have printed reports, but, again, 8 given the -- the fluid nature and the changing nature 9 of the statement and -- made by Ms. Parris, I think 10 it's essential in this case, amongst others, that I 11 have every scrap of paper where somebody took -- took 12 a note regarding those statements, including the -- 13 the small handbooks or -- or e-mails or texts or 14 whatever the police are sending to each other or the 15 detectives back -- back and forth between the -- 16 between the police regarding those conversations or 17 anything that references -- references that. 18 Again, I know that I'm asking for a lot 19 here, but I don't think it should be particularly 20 contentious since these are statements about the main 21 complaining witness in a felony case that I should 22 have access to those, but I think especially in this 23 case where there's demonstrable falsehoods in -- in 24 -- in the testimony of this witness and a fluid, 25 changing testimony and statement over time that I be 19 1 able to pin that down and be able to identify exactly 2 when the -- the statements changed. 3 And then, finally, in regard to the 4 video surveillance, I told Your Honor that I've been 5 told that this video surveillance doesn't exist. 6 I've invited my investigator here, 7 Rick Gove, who is going to give us, I think, a 8 less-than-five-minute testimony about what he found 9 out about the Fred Meyer video. And, frankly, also 10 about the -- the 7-Eleven video that he went out and 11 investigated. 12 And I just want to make that part of the 13 record. And as I told Your Honor, you know, that's 14 fine if -- if we're being told that it's gone, that 15 we anticipate a motion pursuant to California v. 16 Trombetta talking about spoliation of evidence and 17 bad faith on the part of the -- on part of the police 18 or government investigators in that regard. 19 So I think I have to make a full -- a 20 full record regarding the motion to compel that we 21 took every step we could to get that and -- and that 22 it's not available. 23 So that's why I call Mr. Gove, is in 24 order to -- to complete that record here today. 25 That's what I have to say about the motion to compel. 20 1 I'd go ahead and call Mr. Gove if Your Honor's ready 2 for that. 3 THE COURT: Okay. He can come and sit 4 next to the DA and we can turn the microphone toward 5 him and we'll swear him in. 6 (Whispered discussion, off the record, 7 10:40 a.m.) 8 THE COURT: Please stand and raise your 9 right hand. 10 FREDERICK GOVE 11 Was thereupon called as a witness on behalf of the 12 Defendant; and, having been first duly sworn, was 13 examined and testified as follows: 14 THE CLERK: Thank you. 15 THE COURT: Okay. So, Mr. Gove. Oh, if 16 -- actually, if could state your name and spell your 17 name for the record. 18 THE WITNESS: Yes. Frederick Gove, 19 F-r-e-d-e-r-i-c-k, G-o-v-e. 20 THE COURT: And I'll hear your statement 21 regarding the video or if you want to ask questions, 22 you can do that. 23 MR. ENGLE: I'll just ask a couple quick 24 questions. 25 //// F. Gove - D 21 1 DIRECT EXAMINATION 2 BY MR. ENGLE: 3 Q So just tell us your -- your background and 4 your qualifications to be a private investigator. 5 A I have a juris doctor degree and I've been 6 a member of the Oregon State Bar since 1994. And I 7 got my investigator's license in 2001. 8 Q Are you currently licensed by the State of 9 Oregon to be a private investigator by the DP -- 10 DPST? 11 A Yes. 12 Q And, in that regard, do you -- do 13 investigations hired by me in regard to criminal 14 cases that I'm working on? 15 A Yes. 16 Q And did you do so in the case of Mr. 17 Kelley? 18 A I did. 19 Q And did you look into the availability of 20 video into both the Fred Meyer and the 7-Eleven 21 regarding this case? 22 A Yes. 23 Q And just tell us what happened, what'd you 24 find out, first in regard to the Fred Meyer. 25 A I contacted the -- the manager of their F. Gove - D 22 1 Loss Prevention Department at the Hawthorne Fred 2 Meyer on Southeast 39th. And he told me -- well, 3 first of all, I asked him if the -- I -- I talked to 4 him on mid-December, I believe December 17th. And 5 the incident date on this was August 13th or -- 12th 6 or 13th, approximately. 7 I asked him if that video would still be 8 available. He said it's not. It's only available 9 for -- for 45 to 60 days after the date of recording 10 and then it's written over or deleted. 11 I asked him if -- if someone had come and 12 asked for it, either a police officer or a private 13 investigator had come and asked for it in that time 14 period that it was available, if that would have been 15 something that they would have given. And he said it 16 would have been. 17 I asked him if he recalled if someone came 18 and asked for that surveillance. He said he didn't 19 recall because they get about one request per week 20 from Portland Police Bureau for surveillance. And he 21 said that they always comply. They never blow them 22 off or disregard their requests. 23 He said they reply with every request that 24 they get. And he did not recall any requests that 25 had come that they didn't reply to. He did mention F. Gove - D 23 1 that, at that time, they were understaffed in the 2 Loss Prevention Department and that it would have 3 been likely that if someone was just trying to call 4 them on the phone, they would not have received -- or 5 they would not have answered the phone because all 6 their staff were out on the floor. And he said they 7 don't really check their messages, so he said that 8 would not have been a good way to get in touch with 9 them. 10 And I asked him if they had come down in 11 person and -- and asked for a loss prevention 12 officer, if they would have -- one would have come to 13 meet them. He said absolutely, that they always do 14 that. So he said if someone had come asking for the 15 footage, they would have given it to them. 16 Q And can you describe what happened in 17 regard to the Plaid Pantry -- or I'm sorry, the 18 7-Eleven? 19 A Yeah. I -- I went out to the 7-Eleven just 20 a couple weeks ago. I've been trying to call them 21 without much luck and so I eventually went out there 22 and I spoke with a manager there. 23 He -- I asked him specifically if he -- 24 well, they -- the notes that I read from the police 25 officer or the detective who tried to find the F. Gove - D 24 1 surveillance said that they went to the store, but 2 were told that there was no surveillance cameras 3 operating at that particular time. 4 But they did have -- so of -- of the 5 exterior cameras, but they did have interior camera 6 footage, which was provided. So I wanted to 7 determine if -- if -- what the situation was with the 8 exterior footage. So I went and talked to the 9 manager. And, again, you know, we're talking about 10 four months after the fact. 11 So he didn't have specific memory, but he 12 did recall that at some point in the summer -- and -- 13 before I say that, he also said that they often get 14 police coming to ask for their surveillance there. 15 They're on a major intersection of Southeast Stark 16 and 168th, I believe. 17 So he said they -- the police had come at 18 some point and asked for their external footage. And 19 how he described it is their internal surveillance 20 footage is provided by the corporation. The external 21 footage is -- was put there by the franchise owner of 22 that particular store. 23 So the corporation controls the interior 24 and the franchise owner control the exterior, so 25 they're two different systems. And he said the F. Gove - D 25 1 exterior footage, the police had come and asked for 2 the entire computer that they had and they took that 3 computer. He said that they told him that they would 4 return that computer or replace it, but they 5 never did. 6 And then he said at a later date -- I asked 7 him if anyone had -- any police officers had come and 8 asked him for footage and he told the police that 9 they didn't have exterior footage, if that had 10 happened after the police had taken the camera -- or 11 the -- the computer. 12 And he said that that had happened, so that 13 computer was gone and then the police came and asked 14 for it and they had to tell them they didn't have it. 15 So, at that point, I don't know if that was the 16 situation where they came for the August 12th or 13th 17 footage, but it -- it seemed to comply with what was 18 in the officer's report. 19 Q In other words, you don't know if the one 20 where the took the device and didn't bring it back 21 was the Kelley matter or the one where they asked for 22 it and the other cops had taken it or if that was 23 completely two different machines? You're not sure? 24 A I'm not sure. And the -- the manager 25 didn't -- he didn't have any log information or any F. Gove - D 26 1 dates or any paperwork to -- to kind of pinpoint the 2 dates on it. 3 MR. ENGLE: That's all the questions I 4 have for Mr. Gove. 5 THE COURT: Do you have any questions, 6 Ms. Hermann? 7 MS. HERMANN: I don't. 8 THE COURT: Okay. Thank you. 9 MR. ENGLE: And then the final thing I 10 wanted to say, Your Honor, in regard to the motion, 11 itself, is, is just, you know, I -- I wrote this here 12 and I -- and I -- I -- as I -- as I often say, I 13 believe in my ability to write and I believe 14 Your Honor's ability to read. 15 However, the -- just to highlight, I 16 think, that -- that it seems very likely that the 17 notes -- whatever notes were being worked from during 18 the grand jury testimony by the prosecutor would be 19 fruitful on the question of what was known and 20 unknown in regard to Ms. Parris' falsehood of her 21 statements, you know, specifically in regard to, you 22 know, an actual quote, "Okay. Okay. Let me just 23 check my notes if I can," and then goes right to the 24 gun, says, "And you said after you saw the gun at the 25 7-Eleven, you never saw it again; is that right?" 27 1 In other words, "I'm checking my notes," 2 and then the next question involves this -- this 3 question about the gun. So, you know, again, I think 4 I've -- I've put together two very compelling 5 circumstances indicating, you know, that the -- 6 that -- number one, the falseness of the testimony; 7 and, two, that the prosecutor had to have known about 8 it. So in that regard, you know, I -- I -- 9 THE COURT: Well, you know -- so, I 10 mean, the question I have is, are -- is this 11 relevant? Are you making a motion for prosecutorial 12 misconduct of -- like, what is it -- how would the 13 fact that the prosecutor may have known that someone 14 was making a false statement be -- why would you need 15 that for discovery? This is -- 16 MR. ENGLE: So what -- what the Napue v. 17 Illinois case says is the following: Is that if a 18 witness testifies falsely and the prosecutor knew 19 about it and didn't out and out correct it, that is, 20 not just presented contradictory evidence, not just 21 let the grand jury decide about it, but didn't out 22 and out correct it, correct the witness, that that 23 would result in dismissal of the case. That's the 24 remedy. 25 So without putting any names on it, in 28 1 that sense, that's the motion that we're making, is 2 that as you look at this amongst all other ones that 3 I've read in terms of grand jury testimony, this is a 4 situation where it -- it's absolutely clear from 5 these reports that this witness is -- is lying, 6 saying things that are false. And, again, it's -- 7 DEFENDANT KELLEY: Forgive me, 8 Your Honor. I'm saying prosecutorial misconduct. 9 THE COURT: Okay. 10 DEFENDANT KELLEY: Forgive me. 11 THE COURT: Then I'll -- I'll note that 12 that is your motion for the record, Mr. -- 13 MR. ENGLE: To wrap up, Judge, so that 14 regardless of what -- regardless of what you want to 15 call it, if the -- amongst all the other records, 16 that this witness testifies falsely; that it appears 17 very unlikely that that's not known; that the 18 questions that are being asked imply that that's -- 19 that that's known and that -- and that there seems to 20 be sort of an attitude of, "Well, we'll let the grand 21 jury decide or we'll just put this out there without 22 flatly correcting the witness' false statements." So 23 however -- 24 THE COURT: And -- and are you saying 25 that -- 29 1 MR. ENGLE: -- you want to call it, 2 that's the -- 3 THE COURT: -- the evidence -- 4 MR. ENGLE: -- that's the motion. 5 THE COURT: -- of that would be in -- in 6 the notes -- the notes that she refers to in the 7 testimony? 8 MR. ENGLE: I would say that -- as from 9 reading from the transcript as I've indicated here, 10 that that very likely seems to be the case, 11 especially when she -- when -- when you get 12 statements like, "Let me look at my notes," and then 13 go to something that the presence of a gun, which is 14 -- is -- you know, even in what I've already got, it 15 was known that there wasn't a gun as of, you know, 16 11 o'clock on the day of the -- you know, just from 17 the e-mails that I've already got. 18 So I -- I -- my point is even the things 19 that I've gotten already are fruitful on that 20 question because we learned that the detective turned 21 around to the prosecutor and said, "We didn't find a 22 gun." In other words, number one, that he told her 23 that. Number two, they were talking about it. 24 They were talking about the fact that -- 25 that the -- the presence or not presence of a gun 30 1 meant something. So you got -- that was on 2 August 14th and then this happens, you know, a week 3 or so later. The grand jury is held a week or so 4 later. 5 So, you know, it seems clear that -- 6 that -- that that's an issue enough that the -- that 7 it's featured prominently in a -- in an e-mail on the 8 14th and then it's the -- it's the subject of, number 9 one, notes about it; and, number two, direct 10 questions about, you know, "You never saw the gun 11 again after 7-Eleven," et cetera. 12 So I guess call it what you want, but 13 from where I'm standing, we need to be in a position 14 that we can argue, number one, that the witness was 15 false -- that the statements were false, which we've 16 -- which I think is pretty clear and -- from this and 17 other things; and, number two, that that was known. 18 And I can make the argument that it was 19 known because the discovery proves it. But if 20 there's better evidence of that in the form of the 21 notes they refer to there, then -- then I should be 22 able to see those. 23 THE COURT: Okay. Anything else? 24 MR. ENGLE: No. 25 THE COURT: Okay. Ms. Hermann. 31 1 MS. HERMANN: Thank you, Your Honor. 2 I filed a response motion and some of 3 this Mr. Engle has clarified. I said his motion was 4 somewhat confusing because the statement and his -- 5 and his points and then his motions don't always 6 support the statement, so it has been helpful to us 7 that he clarified. 8 But I -- and my response, I've already 9 filed this, so I'll just clarify. In regards to his 10 Point No. 1, in an e-mail between myself or ADA -- he 11 is referring to myself in his e-mail, but I included 12 another DA in my office who started with this case. 13 And e-mails between our office and the 14 police regarding the search warrant, those have 15 already been discovered. I e-mailed those to 16 Mr. Engle and I sent them through discovery. And 17 it's my understanding that issue is resolved from 18 what Mr. Engle just said. 19 Number two, any notes -- he requests any 20 notes of the DDA regarding conversations with police 21 regarding the search warrant. I believe that is also 22 resolved. I did not take any notes and I have 23 clarified that with Mr. Engle, other than those 24 e-mails. 25 Number three, any notes of the DDA 32 1 regarding conversation with police regarding 2 statements of Wendy Parris. Same thing. According 3 to what Mr. Engle just said, that appears to be 4 resolved. I did not take any notes regarding my 5 conversations with police regarding any statements of 6 Ms. Parris. 7 Number four, I don't know -- and I guess 8 maybe the Court has guidance or Mr. Engle can 9 clarify. I don't know what the difference is between 10 any notes of her testimony and any notes regarding 11 her testimony. 12 She testified at grand jury. I was not 13 present for any of her other testimony. I did not 14 take any notes during her grand jury testimony. I 15 have also, as is clarified in Point Five -- Point 16 Four and Point Five appear to be relatively the same 17 thing. 18 Point Four says any notes regarding her 19 testimony or statements of her and Note Five of -- is 20 regarding any testimony of her. She's only testified 21 once. It was at grand jury. 22 To be clear, I did not take any notes of 23 her testimony or regarding her testimony and I did -- 24 I have not taken any notes of any other statements 25 that she has made at any other time that I have 33 1 spoken with her. That seems clear from those. 2 Based on what Mr. Engle is arguing 3 today, it sounds like he's expanded that to ask for 4 -- essentially, he's asking for any work product that 5 I developed of my own thoughts before I went into the 6 grand jury. 7 I can tell the Court I did not take any 8 notes or come into the grand jury with any notes, any 9 handwritten notes that I had taken or typed notes or 10 anything else. I had the police reports and that 11 is it. 12 Mr. Engle seems to be unaware of how our 13 process works at times. He should know from this 14 case that discovery came in in quite a bit of 15 batches, so I certainly did not have all of this 16 discovery at the time of grand jury. 17 I also did not have the medical records 18 opened until grand jury, so those had not been 19 reviewed prior to Ms. Parris' testimony, which I 20 think answers the question. 21 Obviously, Mr. Engle and I have very 22 different opinions about whether or not the witness 23 is truthful in her testimony and how and why that can 24 be based on the facts of the case. We obviously have 25 very different opinions of the facts of this case 34 1 that have been made very clear. 2 But as far as I can say to that point -- 3 and I think I made it clear in my response and in my 4 e-mail to him -- I did not take any notes about her 5 testimony, regarding her testimony, that has anything 6 to do with her testimony or any statements that she 7 has made. 8 Point Six, I did have questions about 9 what that meant and I believe that has been 10 clarified. In this particular case, a SAVA responded 11 to the scene -- to the hospital when Ms. Parris was 12 transported to the hospital and that SAVA happened to 13 be a victim advocate in our office at the time. 14 THE COURT: What -- what's the word 15 you're using? 16 MS. HERMANN: SAVA, S-A-V-A -- 17 THE COURT: Mm-hmm. 18 MS. HERMANN: -- sexual assault victim 19 advocate. 20 THE COURT: Okay. 21 MS. HERMANN: It's a volunteer program. 22 Some of our victim advocates are members of the 23 volunteer program. You have to be trained and go 24 through a whole process. 25 THE COURT: Okay. 35 1 MS. HERMANN: In this case, that person 2 was a victim advocate in my office at the time, Emily 3 Augeson (phonetic). 4 I have clarified with Mr. Engle that she 5 does not have any notes that were taken during her 6 interaction with Ms. Parris at the hospital or on the 7 day as requested. There is a form that they have -- 8 the SAVA has to fill out that is sent back in. I 9 requested that form and I will discover it as soon as 10 it is available. 11 THE COURT: Okay. 12 MS. HERMANN: It sounds like from today 13 and my discussion prior to the start of this hearing, 14 he also asked me for any notes regarding 15 conversations with the victim made by any other 16 victim advocate. And I'd explain that once a case is 17 issued, a victim advocate is then assigned to the 18 case. 19 In this case, that's Vanessa Palacios. 20 And so based on that updated request, I will request 21 any notes regarding conversations with her that would 22 be applicable and I will discover those. 23 And my position is if Mr. Engle has 24 issues with what I've discovered, then he can 25 readdress that with me and we can ask for another 36 1 hearing once we've seen those. 2 But I had not yet requested those 'cause 3 it was unclear to me who he wanted notes from and 4 what period. It sounds like today he wants the 5 entirety of the case, not just from the date that 6 this incident happened and so I will request that. 7 Number Seven, I have requested from the 8 police officers listed in his motion, which I believe 9 are the only ones I had contact with or -- according 10 to the police reports as far as I know for any notes 11 that they had regarding any allegations -- or any 12 discussions with her at the scene. 13 I am starting to receive responses. I 14 will forward those to Mr. Engle as I get them, either 15 confirmation that they do not have any notes or send 16 the notes if they have them. 17 And then the last issue is the video. 18 As I put in my motion and has been made clear to 19 Mr. Engle in several e-mails, the video does not 20 exist. I do not have access to the video. There is 21 a police report that documents that. 22 Certainly, I understand there may be 23 issues as to how fast the police acted, but at this 24 time, that video does not exist. It sounds like they 25 have confirmed it doesn't exist and so I have nothing 37 1 to discover. 2 THE COURT: Okay. Mr. Engle. 3 MR. ENGLE: Oh, Judge, just -- I -- just 4 in response real fast, the -- I -- the only thing I 5 think that -- again, as I said at the beginning, that 6 we're having any huge dispute about is Number Four 7 and Number Five and what "notes" means in regard -- 8 whether notes regarding the testimony and notes of 9 the testimony. 10 So I guess what I'm saying is, is that 11 I'm looking for anything in whatever notes are 12 referred to and are being used by the prosecutor at 13 the grand jury that would indicate that she was aware 14 that what Ms. Parris was saying was false. 15 And -- and -- and I -- and there on 16 Page 7 of my motion and Page 11 of my motion, these 17 are two places where I've put pieces in that very -- 18 that seem very strongly to indicate that the 19 prosecutor is aware of the -- of the issues and the 20 contradictions in the statement that even exist at 21 that point. 22 That is, "Okay. Okay. Let me just 23 check my notes if I can. 24 "And you said that after you saw the gun 25 at the 7-Eleven, you never saw it again, right? So 38 1 you didn't see it in the car as you were driving back 2 or anything like that and it sounds like you were 3 kind of focused on your phone." 4 In other words, the problem is very 5 clear to the questioner that the gun isn't there, 6 that it doesn't exist. And there's questioning being 7 made as though this was something that was being 8 thought about in advance to -- to try to explain that 9 obvious weakness in the -- in the State's case. 10 I don't know how that -- what notes 11 she's referring to, but it seems -- there has to be 12 something that is being referred to there because as 13 she's reading this, it seems pretty clear that we're 14 concerned that the statement has a known discrepancy 15 and that there's no gun. 16 And then again on Page -- Page 11, the 17 DDA's next question at the grand jury hearing seemed 18 to demonstrate that she knows this is a proper case 19 question. "Okay. All right. And so your arm, can 20 you feel it at this point or is it -- do you feel it 21 until later?" 22 "No, it wasn't really -- yeah. I mean, 23 now that -- not yet. Okay. I mean, yeah." So 24 the -- the question, you know, "Did you feel it until 25 later?" again, I don't know -- again, she's right. I 39 1 don't know the internal workings of the office of the 2 District Attorney's Office. 3 But I do know simple logic and I look at 4 that and I go, she just said her arm was shattered 5 and the question was, "Can you feel it at this 6 point?" which doesn't make any sense. 7 And the only reason it would make sense 8 is, is if you're aware at that point that there's 9 a -- a glaring contradiction and that there's -- 10 there's videotape of video -- and I -- I'm -- I'm 11 showing my age. 12 But there's video showing that she's 13 using the arm normally and that the -- the -- that 14 she said that it wasn't injured or she said that it 15 was injured on a previous date and it was calcified 16 and that -- and that -- and that she's -- there's 17 obvious problems with the -- with the -- with her 18 statement that it was injured there at the scene, 19 which, of course, both of these things are very 20 central to this case. 21 The gun and the -- and the broken arm 22 are essential parts of the State's case. These 23 aren't just collateral issues. These are main 24 things. And as you look at this, it seems very clear 25 that the State is already aware at that point at the 40 1 grand jury that there's a problem. 2 So, again, I think that I've got an 3 obligation in this -- in this Napue motion that I'm 4 talking about in order to demonstrate, number one, 5 the falseness of the testimony; and, number two, that 6 the prosecutor knew about it and then the remedy is 7 dismissal. 8 All I'm saying is, is I hear this work 9 product objection, but I guess I'm saying that -- 10 that -- that this goes well beyond that and that in 11 the circumstance where I've got to prove that the 12 prosecutor knew that -- that -- that there was 13 some -- that -- that there was falseness. 14 I think that I've at least laid a 15 foundation for that in -- in the testimony in 16 Paragraph 7 and Page 11, not to mention just the fact 17 that there was lots of things existing. 18 I don't know if they come in batches or 19 not. I just know that -- that I got those medical 20 records fairly early on in the proceeding from a 21 different prosecutor. 22 And, you know, I knew pretty early on 23 that the -- that that arm wasn't broken and that it 24 had been broken on a previous occasion and that it 25 was an old injury and that she said that it was from 41 1 a prior injury, so I knew that -- 2 DEFENDANT KELLEY: (Indiscernible). 3 MR. ENGLE: -- pretty early. So, you 4 know, I -- I guess I just need to be able to 5 demonstrate through the use of those notes that have 6 been referred to as work product that the prosecutor 7 knew it as well at the time of the grand jury. 8 THE COURT: Well, it sounds like -- 9 MR. ENGLE: And so that's why -- that's 10 why -- 11 THE COURT: -- your request is broader 12 than what is written. 13 MR. ENGLE: I'm asking for anything that 14 she's got that's a note regarding the testimony at 15 grand jury. So I -- I -- I'm -- I guess I'm 16 specifically including whatever it is that she's 17 looking at during the grand jury when she's asking 18 Ms. Parris the -- in regard to it. In other words -- 19 THE COURT: So it's notes -- 20 MR. ENGLE: -- things that she's -- 21 THE COURT: -- you're requesting notes 22 that she's in possession of that she's utilizing as 23 she's conducting the direct examination of Wendy 24 Parris. Is that what you're -- 25 MR. ENGLE: I am. 42 1 THE COURT: -- requesting? 2 MR. ENGLE: And I recognize that falls 3 under work product, but I say -- but I'm saying here 4 in this circumstance where the defendant's got a 5 constitutional right in order to make his -- his 6 argument about the -- about the knowledge of the 7 false statements that -- 8 THE COURT: What -- so what -- the -- 9 but this is a motion for discovery. 10 MR. ENGLE: Right. 11 THE COURT: And what is -- what would be 12 within those notes that would constitute discoverable 13 material? 14 MR. ENGLE: So let's say, for 15 instance -- I'm hearing it's a police report. So 16 there's a section where it's been highlighted, "We 17 didn't find a gun," right? 18 You know, whatever. So if that's 19 the police report that she was looking -- so, for 20 instance, the -- the argument -- the counterargument 21 we just made, "Well, it comes in batches. We didn't 22 necessarily have everything." 23 So even if all it is is that -- that 24 medical report highlighted that was -- that she was 25 using during the grand jury that says the arm was 43 1 broken, you know, a year ago and it's calcified over 2 and that's notated, that's important evidence to us 3 because we need to show that they knew in advance 4 that the testimony was false. 5 So even if that's all that it is, that's 6 what we need. So even from what she just said, or if 7 there's a note that says in the corner -- I -- I 8 don't know -- "Now, I'm -- this is a problem," or -- 9 THE COURT: Well, there's no -- 10 MR. ENGLE: -- "Check on this" -- 11 THE COURT: -- there's no motion to 12 the -- so the other thing is, like, what -- what 13 would the discovery -- I understand you may want to 14 file a motion, but there's no existing motion. 15 So what would the -- under the discovery 16 statutes, the obligation to provide material is as -- 17 is not as it relates to a motion to dismiss or a 18 nonexistent motion? 19 MR. ENGLE: Chickens, eggs, right? 20 Because, I mean, which ones came first? So, in other 21 words, I've got to write the motion and I've got to 22 put -- so which is partially done, you know, because 23 we're working on it, but I got to put in there what 24 the facts that I'm referring to -- so that's what 25 discovery is about, you know. 44 1 If I want to make a motion to suppress 2 evidence and I don't have a search warrant, I'm going 3 to make a motion to compel the search warrant so I 4 can write the motion to suppress evidence. 5 Likewise, if I want to make a motion 6 under Napue and I don't have all the evidence in the 7 possession of my opponent that demonstrates that they 8 knew about the falseness of the -- the testimony, I 9 need that before I write the motion. 10 So, in other words, yes, we're filing 11 that. No, I haven't filed it yet. I need the 12 discovery first in order to prepare the motion so 13 that I can litigate it. 14 THE COURT: Do you have any response to 15 that, Ms. Hermann? 16 MS. HERMANN: Only that Mr. Engle has 17 all the discovery in this case that I had or received 18 later. He has the police reports. He has the 19 medical records. 20 I also disagree with his recitation 21 about the medical records say. I think an expert we 22 would call would say differently, so there's that. 23 But I have discovered all of it. 24 THE COURT: So -- 25 MS. HERMANN: Well -- and let me add, if 45 1 he wants to file a motion for -- 2 THE COURT: I -- the -- 3 MS. HERMANN: -- prosecutorial 4 misconduct, he can do that and I can address that 5 because that sounds like what he's saying here. And 6 that's fine and we can go down that route. 7 But as far as discovery, I have 8 discovered all of the police reports and I have 9 discovered all of the medical records that I have 10 received in this case. 11 THE COURT: Well, to the extent that the 12 State, under 135.855(1)(g), the State would be 13 obligated to review any material or information that 14 tends to negate or mitigate the defendant's guilt or 15 punishment. 16 So, to that extent, if there were notes 17 that tended to mitigate the punish -- guilt or 18 punishment, which conceivably could include a motion 19 to dismiss, then -- then those would be materials 20 that should be turned over. 21 I -- it's not -- however, it would not 22 necessarily be exculpatory so as to necessarily 23 overcome a work-product privilege. And -- and your 24 indication is that, at most, you had no notes -- no 25 written notes, but you were looking at items that 46 1 were highlighted? 2 MS. HERMANN: Yes, that's correct. 3 THE COURT: Okay. 4 MS. HERMANN: The police reports. 5 THE COURT: The police report. And -- 6 MS. HERMANN: Or some of them. 7 THE COURT: -- were you -- were you 8 looking at any medical record? 9 MS. HERMANN: I was not. I don't -- I 10 did not review the medical records prior to Ms. -- 11 Ms. Parris' testimony. I don't remember when I 12 opened them. It would've had to have been at grand 13 jury. 14 THE COURT: Mm-hmm. 15 MS. HERMANN: But I can't remember when 16 we received her medical records. 17 THE COURT: Okay. I -- anything else, 18 Mr. Engle? 19 MR. ENGLE: Judge -- Judge, in -- well, 20 in terms of how I would express the -- or request 21 that Your Honor express the order would be -- is that 22 the State provide everything that they were relying 23 on during the -- in -- in order to do the examination 24 of the witness during grand jury. 25 And then that's -- that's everything 47 1 they were relying on. And then I know what they had. 2 I know what they didn't have. I know what she knew 3 about. I know what she didn't know about and I know 4 what she had marked on her -- marked them up in -- 5 in -- in whatever way and put whatever notes on it. 6 THE COURT: Okay. Well, I'm satisfied 7 based on her statement that what she had was 8 highlighted police report, that that was what -- the 9 only written material that she was relying on during 10 the course of the -- during the course of her 11 discussion. 12 She had not reviewed the medical 13 information, so the theory is that she would've known 14 that -- theory is that she would've known of -- of 15 the false -- any false statement based on the -- 16 basically, the combination of the information in the 17 police report and the medical records. 18 But the evidence is that that was not 19 material within her knowledge at the time of her 20 questioning. The highlighted -- to the extent that 21 highlights even -- in -- may even count as work 22 product, there has not been a showing to establish 23 that there is a constitutional right to have those 24 highlighted notes such that they'd be obligated to be 25 reviewed in camera and -- and turned over. 48 1 And so I'm not going to be granting the 2 motion as to Number Four and Five for those reasons. 3 If there were -- it is -- if there are any written 4 notes -- so I will make it and state it in writing. 5 If there are any written notes that contain 6 statements of Ms. Parris, if they are mixed with work 7 product, then those should be handed over in camera. 8 So any statements must be handed over to 9 the defendant. If they're work -- mixed with work 10 product, then they should be provided to the Court 11 for in-camera inspection. 12 And I don't -- so what my order would 13 say is that most of the issues have been resolved. 14 The -- and as to four and five, which seem to be the 15 contested issues, I've just indicated what my ruling 16 will and I'll reflect that in writing. 17 Do I need to address any other specific 18 of -- of your requests in writing, Mr. Engle? 19 MR. ENGLE: No. 20 THE COURT: Okay. Okay. You can give 21 me the minute order, Tarah, and I'll -- 22 THE CLERK: Okay. 23 (Whispered discussion, off the record, 24 11:11 a.m. - 11:12 a.m.) 25 THE COURT: Anything else for the 49 1 record? 2 MR. ENGLE: No, thank you. 3 THE COURT: Okay. 4 MS. HERMANN: No, Your Honor. 5 THE COURT: We can go off the record. 6 * * * 7 (Court adjourned, 1-9-20 at 11:12 a.m.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 --oOo-- 3 REPORTER'S CERTIFICATE 4 I certify, by signing below, that the 5 foregoing is a correct transcript, of the audio record 6 in the above-entitled cause, as recorded on CD and 7 transcribed to the best of my ability and in accordance